Employment Claims without a Lawyer

A Handbook for Litigants in Person

David Curwen, Barrister

Unity Street Chambers, Bristol

B A T H P U B L I S H I N G

www.noemploymentlawyer.co.ukThe accompanying website: www.noemploymentlawyer.co.uk contains more useful information including:

• links to useful websites

• annotated forms

• occasional updates

Also available from Bath Publishingwww.employmentcasesupdate.co.ukYou can read, for free, the full text of all the EAT, Court of Appeal and Supreme Court judgments, together with a short summary of each case at www.employ-mentcasesupdate.co.uk.

www.employmentclaimstoolkit.co.ukFinally, if you need to prepare a schedule of loss, visit www.employmentclaim-stoolkit.co.uk which will help you to create a mathematically and legally correct document to support your claim. The service is free if you only want to create one schedule.

Published September 2015

ISBN 978-0-9567774-3-0

Text © David Curwen

Typography © Bath Publishing

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Contents

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Contents

1. Introduction 1

2. Pre-claim matters

2.1 Grievances 52.2 What is a grievance? 52.3 Informal procedure 52.4 Formal procedure 62.5 Failure to comply with the ACAS Code of Practice 72.6 Mediation 82.7 Judicial mediation 82.8 Disciplinary procedures 82.9 Capability 92.10 Formal procedures 92.11 Sickness absence 122.12 Misconduct 132.13 What constitutes misconduct? 142.14 Warning 142.15 Informal procedure 152.16 Suspension 152.17 Formal procedure 152.18 The disciplinary hearing 17

3. Unfair dismissal

3.1 What is dismissal? 213.2 Termination of contract of employment 213.3 Resignation 213.4 Who can make a claim for unfair dismissal? 223.5 The qualifying period 243.6 Automatically unfair dismissals 243.7 Protected disclosure (“whistleblowing”) 253.8 A worker 263.9 Illegal contracts 263.10 Dismissal 273.11 Fixed term contract 27

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3.12 Constructive dismissal 273.13 Unfair dismissal 303.14 Capability 313.15 Misconduct 323.16 Redundancy 343.17 Contravention of a duty 393.18 Some other substantial reason 403.19 Written reasons for dismissal 40

4. Discrimination

4.1 Introduction 414.2 Who can bring a claim? 414.3 The layout of the Equality Act 2010 424.4 Protected characteristics 424.5 Prohibited conduct 434.6 Direct discrimination 434.7 Indirect discrimination 444.8 Comparators 454.9 Harassment 464.10 Victimisation 464.11 Discrimination in employment 474.12 Contract of service 484.13 Vicarious liability 484.14 Joint liability 484.15 Burden of proof 484.16 Age discrimination 494.17 Disability discrimination 494.18 Gender reassignment 524.19 Marriage or civil partnerships 524.20 Pregnancy and maternity 524.21 Race discrimination 524.22 Religion or belief 534.23 Sex discrimination 534.24 Sexual orientation 53

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5. Disputes about pay

5.1 Introduction 555.2 Statement of particulars of employment 555.3 The rate of pay 565.4 Deductions from wages 565.5 Sick pay 575.6 Minimum wage 575.7 Working time 585.8 Detriment 585.9 Holiday pay 59

6. Transfer of undertakings

6.1 What is a transfer of undertakings? 616.2 TUPE 616.3 Who does the transfer apply to? 626.4 Change of service provision 626.5 Effect of the transfer 626.6 Dismissal 626.7 Consultation 63

7. Time limits for bringing a claim

7.1 Introduction 657.2 Continuing act in discrimination cases 657.3 Effect of submitting a claim for early conciliation 667.4 Effective date of termination 667.5 Extending the effective date of dismissal 677.6 Effect of an appeal 677.7 Presentation of claim 677.8 Sundays and Bank Holidays 687.9 Extending the time limits 68

8. Early conciliation

8.1 Introduction 718.2 Relevant proceedings 718.3 Exemptions 728.4 Contacting ACAS 73

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8.5 The Early Conciliation form 738.6 Submission of the form 738.7 Contact 748.8 Period for Early Conciliation 748.9 TheEarlyConciliationcertificate 748.10 Time limits 75

9. Tribunal fees

9.1 Introduction 779.2 The amount of fees 779.3 Acceptance of your fee 789.4 Remission of fees 789.5 Disposable capital 799.6 Form EX160 809.7 Receiptofbenefits 819.8 Income 819.9 Income limits 819.10 Evidence of income 829.11 Appeal 839.12 Refund of fee 839.13 Exceptional circumstances 839.14 Respondent’s fees 84

10. Making a claim to the employment tribunal

10.1 How to make a claim 8510.2 Submitting your application 8510.3 Completing the ET1 8610.4 The ET1 form 8610.5 Providing details of your claim 91

11. Responding to a tribunal claim

11.1 Receipt of the ET1 9511.2 How to respond 9511.3 Default judgments 9511.4 The ET3 form 9611.5 Providing details of the response 9811.6 Extension of time 99

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11.7 Reconsideration of rejection 10011.8 Amending the response 100

12. What happens next? Summary of procedure after the responsehasbeenfiled

12.1 Procedural rules 10312.2 Presidential guidance 10312.3 Summary of procedure 104

13. Amending a claim

13.1 What is an amendment? 10713.2 Guidance document on amendments 10713.3 Time limit 10713.4 Types of amendment 10713.5 Substantial changes 10813.6 Categories of amendment 10813.7 Adding or substituting a new Respondent 110

14. Additional information

14.1 Additional information of the ET1 11114.2 Additional information of the ET3 11114.3 Importance of compliance 11214.4 Written answers 11214.5 ACAS Guide 112

15. Preliminary hearings

15.1 What is a preliminary hearing? 11515.2 Striking out and deposit orders 11515.3 Notice of preliminary hearing 11615.4 Respondent’s application 11615.5 Telephone hearing 11715.6 Importance of preparing for the hearing 11715.7 Making a deposit order 11815.8 Amount of the deposit 11915.9 Payment of the deposit 12015.10 Striking out the claim or response 12015.11 Grounds for striking out 121

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15.12 Unless orders 12415.13 Other directions 124

16. Disclosure of documents

16.1 What is disclosure? 12716.2 What documents should be disclosed? 12716.3 Sanction for failing to disclose documents 12816.4 Documents held by a third party 12916.5 Standard disclosure 12916.6 Specificdisclosure 12916.7 The overriding objective 12916.8 Confidentialdocuments 13016.9 Privileged documents 130

17. Schedule of loss

17.1 What is a schedule of loss? 13317.2 Form of the schedule of loss 13317.3 Unfair dismissal claim 13317.4 Basic award 13417.5 A “week’s pay” 13517.6 Notice pay 13517.7 Compensatory award 13617.8 Pensions 13717.9 Job seeking expenses 13717.10 Loss of statutory rights 13717.11 Future loss of earnings 13717.12 ACAS uplift 13817.13 Other claims 13817.14 Interest on awards 139

18. Settlement agreements

18.1 What is a settlement agreement? 14118.2 Early conciliation 14118.3 Procedure 14218.4 Date for payment 14318.5 Reference 14318.6 Confidentialityclause 143

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18.7 Tax liability 14418.8 Confidentialityofsettlementnegotiations 14418.9 Legal requirement for independent legal advice 14418.10 Settlement agreement recorded by ACAS 14518.11 Settlement agreement not honoured 145

19. Witness statements

19.1 What is a witness statement? 14719.2 Evidence in chief 14719.3 Format of the witness statement 14819.4 Challenging the Respondent’s case 14819.5 Referring to documents 14819.6 Facts supporting your claim 14919.7 Remedy 150

20. Preparation for the hearing

20.1 Introduction 15120.2 Witnesses 15120.3 What is the position if you cannot get a statement? 15120.4 At what time will the witness need to attend the hearing? 15320.5 Witness unable to attend the hearing 15320.6 Postponing the hearing 15320.7 Documents 154

21. The hearing

21.1 Visiting an Employment Tribunal 15721.2 Length of hearing 15721.3 Tribunal hours 15721.4 Appearance 15821.5 Pre-hearing discussions 15821.6 Postponement of the hearing 15921.7 Other proceedings 15921.8 One judge or three? 16021.9 Summarising the issues 16021.10 Whogivesevidencefirst? 16021.11 Order of witnesses 161

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21.12 The evidence 16121.13 Procedure for the Claimant 16221.14 Your witnesses 16521.15 The other side’s case 16621.16 Submissions 167

22. Remedies

22.1 Introduction 16922.2 Documents 16922.3 Breach of contract claims 16922.4 Other contract claims 17122.5 Deduction from wages claim 17122.6 Unfair dismissal 17222.7 Compensation 17422.8 Basic award 17422.9 Compensatory award 17622.10 Other claims 182

23. Judgments

23.1 Reserved judgment 18523.2 Judgment on liability only 18523.3 Reasons for the decision 18523.4 Inferences 18623.5 Remedy 18723.6 Reconsideration of judgments 18723.7 Circumstances in which a judgment will be reconsidered 188

24. Costs

24.1 Costs orders 19124.2 Preparation time orders 19124.3 When can a costs order be made? 19224.4 Deposit 19224.5 Costs warning 19324.6 Untruthful allegations 19324.7 Withdrawal of the claim 19324.8 Postponement of a hearing 194

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24.9 Breach of an order 19424.10 Reinstatement or re-engagement 19424.11 Tribunal fees 19424.12 Amount of costs order 19424.13 Wasted costs order 19424.14 Ability to pay 195

25. Appeals

25.1 Who can appeal? 19725.2 Fees 19725.3 Grounds of appeal 19825.4 Procedure 19825.5 Time limit for appealing 19825.6 Where the response had been struck out 19925.7 Extension of time 19925.8 Contents of Notice of Appeal 19925.9 Preliminary consideration by a judge 20025.10 Where the appeal will be heard 20025.11 Preliminary hearing 20025.12 Cross-appeal 20125.13 Full hearing 20225.14 Listing the appeal 20225.15 The decision 20325.16 Costs 203

Appendix A: Jargon buster 205

Appendix B: Model letters and precedents

Grievance letter 1 219Grievance letter 2 220Grievance letter 3 221Grievance letter 4 222Invitation to grievance meeting 1 223Outcome of grievance meeting 1 224Outcome of grievance meeting 2 226Invitation to disciplinary investigation meeting 227Invitation to disciplinary hearing 228

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Dismissal letter 229Appeal against dismissal 230Resignation letter 1 231Resignation letter 2 232ET1 Section 8.2: Details of claim - unfair dismissal (1) 233ET1 Section 8.2: Details of claim - unfair dismissal (2) 235ET1 Section 8.2: Details of claim - constructive unfair dismissal 237ET1 Section 8.2: Details of claim - protected disclosure detri-ment and dismissal 239ET1 Section 8.2: Details of claim - disability discrimination 241ET3 Section 6: Details of response to unfair dismissal claim 243ET3 Section 6: Details of response to constructive unfair dis-missal claim 245ET3 Section 6: Details of response to protected disclosure det-riment and dismissal claim 247ET3 Section 6: Details of response to claim for disability dis-crimination 249Request by the Respondent for additional information of the ET1 in a claim for constructive unfair dismissal 251Request by the Claimant for additional information of the ET3 response 253Request by the Claimant for additional documentation 255Questionnaire relating to a claim for disability discrimination 256RequestbytheClaimanttotheTribunalforspecificdisclosureof documents 258List of documents 260Witness statement by the Claimant 261Witness statement by a witness on behalf the Claimant 264Witness statement by a witness on behalf of the Respondent 266Application to the Tribunal for a witness order 269Offer letter from Claimant 270Offer letter from Respondent including a cost warning 271Settlement agreement reached before bringing a claim 272Settlementagreementincorporatingareferenceandconfiden-tiality clause 273Application to the Tribunal to strike out claim or make a deposit order 276Application to postpone the tribunal hearing 278

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Schedule of loss 280Application by Claimant for a reconsideration of the judgment 284Application by Respondent for a reconsideration of the judg-ment 286Appeal letter 287Grounds of appeal Section 7 Form 1: Notice of Appeal From Decision of Employment Tribunal 288

Appendix C: Table of cases 289

Appendix D: Useful resources

Internet sites 305Books 306Main Acts and Regulations 306ACAS Codes of Practice and Tribunal Guidance documents 307Tribunaloffices 307

Index 309

xvi

1

Chapter 1

Introduction

Bringing a case in an employment tribunal can be a frightening prospect even if you are represented by a lawyer, but if you are representing yourself it can appear to be an impossible task; coping with the procedure, preparing witness statements and complying with time limits, particularly if the other side does have legal rep-resentation.

A person who appears in an employment tribunal as one of the parties in the claim is called a litigant. This can refer either to the person bringing the claim (the “Claimant”) or to the person or company defending the claim (the “Respondent”). A person who represents themselves whether as a Claimant or a Respondent is called a “litigant in person”. This book is designed to assist the litigant in person. It is mainly for employees who are considering bringing a claim or who have started a claim but it will also be a useful guide for an employer Respondent who is acting in person or is representing their company. Therefore I will give guidance both on how to bring a claim and also how to defend a claim that has been brought against you. Whether you are bringing a claim or defending a claim it is always helpful to be aware of the procedures and tactics that the other party might be using.

The employment relationship is probably the most important relationship a person will have in their life after their family. When the employment relationship breaks down, if your job is at risk or even where there are problems at work this can have a significant impact on your livelihood and your life. If you have been dismissed and are out of work the financial aspect will probably be the most important motivation for bringing a claim. Another aspect will be the possibility of trying to negotiate a satisfactory reference from your employer, which should make obtain-ing new employment easier - this will be particularly relevant in those cases where the reason for the dismissal has been misconduct.

Whether you have obtained a new job or not, another important reason for bring-ing a claim is self-respect, proving that the dismissal has been unfair whether it is a question of proving the allegation of misconduct to be false, showing that you were wrongly selected for redundancy or that the dismissal was motivated by discrimination of some form.

This book is intended to be a guide to tribunal practice. It is not a textbook on employment law although I will give a summary of the law in those different areas of employment law that a tribunal can hear. A litigant in person who wants to research the law will need to obtain a text book or look on the internet. A list of the best text books and internet sites is given in Appendix D. There is also a set of precedents, or model letters, in Appendix B which can be used as guides or templates.

There have been a number of recent changes in the law which have made it more

Introduction

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difficult to bring an employment claim; the qualifying period for bringing an unfair dismissal claim has increased from one to two years; there is now a requirement to participate in pre-action conciliation; and most significantly there is a fee pay-able on bringing a claim and when the case is listed for the hearing. Faced with these obstacles a person considering bringing a claim might well give up before even starting. I hope that by explaining the procedure in fairly simple and easy to understand language, this will encourage that person to persevere with their claim.

It is important to appreciate right from the outset that bringing a claim in an employment tribunal is not a task to be undertaken lightly. It is a significant com-mitment both in terms of time and emotional input. Certain steps need to be undertaken by a specific date and failure to comply with tribunal orders or to provide documents or information by that specified date can result in the claim being struck out and possibly an order to pay the Respondent’s costs. If the tri-bunal concludes that the claim has been unreasonably brought or unreasonably conducted it can make a costs order against that party.

In this book I start by considering the pre-claim position where an employee has a complaint or a grievance, how the employee should go about raising this and get-ting it resolved, and how the employer should deal with a grievance that has been raised. I then consider the most common types of claim that are brought in the employment tribunal; these include unfair dismissal, various types of discrimina-tion claim and breach of the Working Time Regulations. I have deliberately not included claims relating to trade union membership as these are likely to be brought by or with the assistance of union representatives. Nor have I included equal pay claims as these are extremely complex. I would recommend getting a lawyer if you are considering either of these types of claim.

The main part of the book covers Employment Tribunal procedure with provi-sions about pre-claim conciliation, commencement of a claim, payment of tribunal fees and how to avoid paying these fees if you are on a low income, and responding to a claim. I will take you through the various procedural steps and pitfalls that you may face leading up to the hearing itself, and describe the law on remedies and costs. Finally I will deal with reconsideration of decisions and appeals.

In this book I have referred to the Claimant as “he”. This is not because it is only intended for male Claimants but because I find putting in the alternative each time either “he/she” or “s/he” to be rather clumsy. All government Acts or Statutes use the masculine gender “he” as including the feminine “she” (see section 6 Interpre-tation Act 1978) so I have adopted the same formula as a matter of convenience.

I have tried to use everyday language but there are many legal words that you will need to know; where these are used I will explain what the word or phrase means. I have tried to limit the references to Statutes (these are Acts of Parliament which set out the law), Regulations or reported cases but where necessary I will refer to these giving the section number or the Regulation and the name and date of the Act or Regulation.

Introduction

3

When looking up Acts or Regulations yourself it is important to know the date of the one you want because in some cases a new Act or Regulation will have been passed which has the same name as the old one. Where possible in the text of the book I have summarised the wording of Statutes or Regulations.

Do not be afraid of contacting the employment tribunal if you have a query about the tribunal procedure - they are generally very helpful particularly if you are a litigant in person. You can telephone the employment tribunals public enquiry line on 0300 123 1024 (or 0141 354 8574 in Scotland).but do be aware that they will not give advice about the merits of your particular claim. There is also a huge amount of helpful information on the internet. In particular I can recommend the ACAS Codes of Practice or guides. I have listed these and other helpful websites at Appendix D.

In June 2015 the Law Society published guidelines for lawyers acting against liti-gants in person. This relates to all court proceedings and not just employment tribunals. It also includes a section for the litigant in person on what to expect from the lawyer acting for the other party in a case and has a list of relevant court decisions involving litigants in person. The document can be found on the Law Society website.

4

5

Chapter 2

Pre-claim matters

In the first part of this chapter I will consider the position with regard to com-plaints, grievances, disputes that can arise between an employer and an employee and the procedure that should be used to resolve these grievances. I will then go on to consider disciplinary procedures; this will also include the way in which employers should deal with performance related issues and with long term sick-ness absences.

2.1 GrievancesThere is an ACAS Guide to Discipline and Grievances at Work (the “ACAS Guide”) which sets out in clear language the way in which grievances should be dealt with in the workplace. It is a guide which is designed for both employers and employees.

There is also an ACAS Code of Practice on Disciplinary and Grievance Proce-dures (the “ACAS Code of Practice”), the latest edition of which was published in March 2015. It is important for both employees and employers that the steps given in the Code of Practice setting out the way in which grievances should be dealt with are followed. A failure to follow the recommended procedure could result in a reduction or an increase in an employment tribunal award by as much as 25% (section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992) (see Chapter 17).

Both these booklets can be found on the ACAS website at www.acas.org.uk.

2.2 What is a grievance?A grievance is a concern, a problem or a complaint.

It might be about:

• things you are asked to do at work;

• the terms and conditions of your contract of employment, such as pay, hours of work, place of work etc;

• new working practices or organisational changes;

• the way you are being treated at work, e.g. bullied, victimised, ignored etc;

• being subjected to discrimination.

2.3 Informal procedureThe first step is to try to resolve the problem informally by talking about it with your line manager or someone from Human Resources (“HR” or Personnel De-

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partment). If you feel you cannot speak to your line manager about the problem speak to another member of the management team or a person in a position of authority. In smaller firms, which are often run by the owner or by a manager, there might be no other person with whom a grievance can be raised. In these situations it is still important that the grievance is properly dealt with.

If you are the employer it will always be better for you to resolve any concerns or problems at this stage rather than allow them to go unheeded or ignored; while some problems might resolve themselves with time, other problems will become worse and be more difficult to resolve as time passes. Grievances should always be dealt with promptly.

Many companies will have a written grievance procedure which will set out who should be contacted in the case of a grievance and how to go about this. You should check your contract of employment or the company handbook to see if there is a written grievance procedure and make sure you follow it.

ACAS recommends having a written policy to make it clear what the procedures are and how they are to be followed.

2.4 Formal procedureIf the problem is not resolved with an informal discussion the next stage is to make a formal complaint. This will need to be done in writing. You should set out your grievance and give examples of the problems or conduct complained of, ideally including relevant dates and the names of people involved. Keep a copy of this letter for yourself.

Your employer should respond by arranging a meeting to discuss the complaint. ACAS recommends that where possible the meeting should be held within five working days of the grievance being received.

You are entitled to be accompanied by a work colleague or a trade union rep-resentative to the meeting (section 10 Employment Relations Act 1999) if your grievance concerns a duty owed to you by your employer. Where the employer refuses a reasonable request to be accompanied you can make a complaint to the employment tribunal. If the complaint is upheld the tribunal can make an award of compensation of up to two weeks pay (section 11 Employment Relations Act 1999).

Paragraphs 35 to 39 of the Code of Practice set out various factors that should be considered when selecting a person to accompany you to a grievance meeting. It suggests an employee be accompanied by a “companion who is suitable willing and available on site”. The request to be accompanied must be a reasonable re-quest. What this means is that if you choose someone who works at a very distant location or is going to be absent from work for an extended period, the employer might regard this as an unreasonable request.

Your companion is entitled to address the meeting to sum up and put forward

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7

your case.so you should be looking to be accompanied by someone who will help explain your case not someone likely to be disruptive or who might antagonise the employer.

See Appendix B, Grievance letters 1 to 4 for examples of letters requesting a grievance meeting.

The meetingThe meeting will be an opportunity for you to explain your grievance and to pro-vide any further details you consider might be helpful to your case; this includes providing specific examples of your complaint. If there are a number of differ-ent points you want to raise make a note of these before the meeting so that you remember to cover each of them.

You will also need to explain how you would like your grievance to be resolved. It will be an opportunity for your employer to ask you about the problem, about any evidence you have referred to and to put forward any points you might not have taken into account, including any potential difficulties with the resolution you have proposed.

If it is necessary for your employer to investigate any of the matters you have raised, the employer should adjourn (i.e. postpone) the hearing to another day to allow time to investigate these matters.

The outcomeAfter the meeting your employer should write to you telling you whether they uphold your grievance (i.e. accept it) or not. If they do accept it they should tell you what they propose to do about it; if they do not accept it they should explain why. The letter should also inform you of your right to appeal.

It is good practice for the employer to keep a written record of the grievance meeting and a copy of this record should be given to you so that you have the op-portunity to correct any errors. If you do want to correct any mistakes or include anything that you consider was left out, you should make these changes on the copy of the meeting that you were given and ask your employer to agree them.

AppealIf you do not agree with the decision you can appeal. You will need to write to your employer stating that you are appealing the decision and why you do not agree with it.

Your employer should arrange a further meeting. Usually this will be done with a different manager, although this might not be possible in a very small business. Again you have the right to be accompanied to the meeting.

2.5 Failure to comply with the ACAS Code of PracticeThe failure by an employee to raise a grievance before bringing a claim in the employ-

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ment tribunal can have adverse financial consequences for the employee, because the tribunal can reduce an award by up to 25% where it finds that the employee has unreasonably failed to comply with the provisions of the ACAS Code of Practice. Alternatively the tribunal can increase the award by up to 25% where it considers that the employer has unreasonably failed to comply with the provisions of the Code of Practice.

2.6 MediationThe ACAS guide recommends mediation as a possible way of resolving grievances. A mediator is an independent third party who sits down with both sides and tries to help them resolve their dispute. The mediator will not act as judge but will help each side see the other person’s point of view and help them try to reach a com-promise that goes some way towards satisfying each party, or perhaps suggesting a resolution which neither side had considered.

The ACAS guide sets out different situations that might and might not be suitable for mediation. In particular, where decisions about misconduct have to be taken or where the employee wants an allegation of discrimination investigated, it would probably not be appropriate to have mediation.

2.7 Judicial mediationThe employment tribunals do provide a mediation service which is conducted by an employment judge acting as the mediator. The cost of this mediation is £600, which tends to be rather less than a private mediator would charge.

Summary of Grievance Procedure(1) Resolve grievances informally - often a quiet word is sufficient.

(2) Use the company grievance procedure (if there is one) where it has not been possible to resolve the matter informally.

(3) Write to the employer setting out the grievance.

(4) Arrange a meeting to discuss the grievance and allow the employee to be accompanied.

(5) Decide on appropriate action, if any, and inform the employee.

(6) Allow the employee to appeal if not satisfied with the outcome.

2.8 Disciplinary proceduresA disciplinary situation can include both an act of misconduct or poor perfor-mance. Most employers will have a written disciplinary procedure and some em-ployers will have a separate written procedure dealing with poor performance (often referred to as a “capability procedure”).

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2.9 CapabilityCapability covers those circumstances where an employee is not doing his job properly and where his performance is below the standard expected of him. This could be for any number of reasons, either through lack of skill or experience, because of emotional or domestic problems or simply because he is lazy or cannot be bothered to do the job properly. It will also apply where he is unable to do his job through long-term sickness.

It is important to note that the ACAS Code of Practice includes procedures for poor performance. The contract of employment might contain a procedure deal-ing with performance issues - the employer can use this as long as it contains the basic principles of fairness, which are set out in the Code of Practice.

If you are the employer you would be well advised to deal with poor performance informally if this is possible. Sometimes a quiet word with the employee concerned will be sufficient to make him aware that his poor performance has been noticed and that an improvement is expected. It is usually preferable that you do this in private - if it is done in front of work colleagues it might cause embarrassment and can lead to accusations of harassment.

There is a new ACAS booklet called “How to Manage Performance” which can be found on the ACAS website. This includes a section on dealing with under-performance.

2.10 Formal proceduresIf the poor performance continues you, as the employer, might feel the need to implement formal procedures. The first step will be to investigate the problem; you should see whether the employee has been properly trained, you should find out the reason for the incompetence or poor performance and see whether it was the employee’s fault or some other cause. This will involve speaking to the employee himself and those responsible for training or supervising him.

First meetingIf it appears that the problem has been caused by insufficient training you should consider whether appropriate training should be organised for the employee.

If the problem appears to lie with the employee then you should invite the em-ployee to a meeting. The letter inviting him should contain sufficient information about the poor performance to enable the employee to respond to the allegation. The letter should also set out possible consequences of a failure to improve and advise the employee of his right to be accompanied to the meeting.

At this meeting the allegation of poor performance will need to be explained to the employee with specific examples being given. The employee should be allowed to ask questions about the allegations or the evidence on which they are based. The employee should have the opportunity to put their case and to call any witnesses

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10

they wish to call. If the employee raises matters which require further investigation then the meeting should be adjourned to allow these matters to be investigated.

WarningIf it is found that the allegation of poor performance is justified the employee should be given a warning; this should state that he will need to improve within a specified time period. The time period should be sufficient to give the employee a reasonable period in which he can show that his performance has improved and will often be three months. Where possible the employee should also be told what standard he would be expected to achieve in that period. The letter should also set out the possible consequences in the event of a finding that he has failed to improve his performance.

Second meetingIf the employee fails to achieve the required standard within the given period you should arrange a further meeting. The employee should be invited to attend at a stated time and place. This letter will need to set out the allegations again, and refer to the previous meeting and what was expected of the employee. It will also need to set out why it is considered that he has failed to improve his performance. The employee should be advised of his right to be accompanied to the meeting.

In this meeting the allegation of poor performance should be explained with de-tails being given of what was expected of the employee since the previous meeting and why it was considered that his performance had not improved. You will need to consider what the employee says about this failure, whether he accepts he was at fault and if he does not what explanation he gives. If this explanation is not accepted you should let the employee know why.

The decisionBefore deciding to dismiss an employee you should give consideration to whether there are alternatives such as:

• would further training change the situation?

• could the employee be moved to an alternative position?

• should the employee be given a further chance to show that they can im-prove their performance?

Only if there is no alternative should you be considering dismissal.

A number of factors will affect the consideration of whether dismissal is a reason-able option, including:

• how long the employee had been employed (the longer the period the less reasonable the decision to dismiss becomes);

• the attitude of the employee and whether they have shown efforts to im-prove but have found some parts of the job beyond their capabilities or

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11

whether they have made little effort to improve;

• the size of the organisation and the extent to which other positions are available.

It is advisable that you arrange for someone to take notes of what is said at these meetings. These notes should be typed up after the meeting and a copy given to the employee to make any additions or corrections. Once approved you should arrange for the employee to sign the note to confirm that it is accurate.

The employee should be informed of the decision in writing and reasons should be given for the decision. If the decision is taken to dismiss the employee he should be given the appropriate period of notice as this is not a dismissal for gross misconduct where the employer need not give notice (see Chapter 3). Where the contract of employment has provision for it the employee can be given pay in lieu of notice (i.e. payment instead of working out the period of notice).

AppealWhatever sanction the employee is given he should be given the opportunity to appeal and he should be notified of this right in writing. The appeal should be heard without unreasonable delay. It should be heard by someone different from the person who conducted the disciplinary hearing. If the employee raises new matters in his appeal letter these should be investigated before the appeal is heard. Again, employees have a right to be accompanied to the appeal hearing.

The decision on the appeal and the reason for this decision should be given in writing.

Summary of capability procedure(1) Resolve the issue of poor performance informally - often a quiet word

is sufficient.

(2) Use the company capability procedure (if there is one) where it has not been possible to resolve the matter informally.

(3) Write to the employee setting out the allegation and why his perfor-mance is considered to be below standard.

(4) Arrange a meeting to discuss the poor performance and allow the employee to be accompanied.

(5) Decide on appropriate action, if any, and inform the employee in what respect his performance is expected to improve and over what period.

(6) Monitor performance over this period and invite the employee to a further meeting if there has been no or insufficient improvement.

(7) Explain to the employee in the meeting why it is considered his per-formance has not reached the expected standard and listen to the

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employee’s explanation.

(8) Decide on appropriate action, if any, and inform the employee.

(9) Allow the employee to appeal if he is not satisfied with the outcome.

2.11 Sickness absenceLong term sickness can create difficulties for employers, particularly small busi-nesses. Whilst employment tribunals understand the problems long term sickness can create, they also expect employers to be sympathetic and show understanding towards the employees. Appendix 4 of the ACAS Guide gives guidance as to how to deal with absences caused by sickness or injury.

As an employer you will also need to be aware that in some situations there will be an overlap between long term sickness absence and disability discrimination under the Equality Act (see Chapter 4) and you will have to be mindful of the requirement to make adjustments to assist a disabled employee.

Meeting You should always try to arrange a formal meeting with the employee before coming to a decision whether to dismiss. This will not always be possible - for example, in cases where the employee is off sick with stress, they or their doctor might argue that such a meeting would contribute to the employee’s condition and make it worse. Such a meeting will need to be held at a place and a time that is convenient for the employee - this might need to be away from the workplace and possibly even at the employee’s home. It is important that the employee is informed if there is any question of his employment being terminated.

Factors to be taken into accountAs an employer, when considering whether to dismiss an employee who has been on long term sick leave or on the grounds of capability, the sorts of questions that you should be asking are:

• how long has the employee been off sick?

• how long is it anticipated that the employee will continue to be off sick?

• has medical evidence been obtained to carry out an assessment of the position, either from the employee’s doctor or from an occupational health physician?

• what is the nature of the employee’s job?

• how important is the employee’s position in the organisation?

• can the post be covered by other employees?

If the matter comes before an employment tribunal in a claim for unfair dismissal these are all factors that the tribunal will be considering when assessing how long

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it would be reasonable for this employer to wait before dismissing the employee. Tribunals expect employers to take a sympathetic and considerate approach to-wards employees who are on long term sickness absence.

The dismissal of an employee who has been on long term sickness absence should be the last resort and only decided upon when all other possible alternatives have been considered and rejected. If the employee is disabled you will need to consider possible adjustments as an alternative to dismissal.

The decisionThe employee should be informed of the decision in writing and reasons should be given for the decision. If the decision is taken to dismiss the employee should be given the appropriate period of notice as this is not a dismissal for gross mis-conduct where the employer need not give notice.

Whatever the sanction the employee should be given the opportunity to appeal and he should be notified of this right in writing. The appeal should be heard without unreasonable delay. It should be heard by a different person than the person who conducted the hearing. If the employee raises new matters in his appeal letter these should be investigated before the appeal is heard. Again, employees have a right to be accompanied to the appeal hearing.

Summary of procedure for dealing with long term sickness absence(1) Write to the employee to find out how long they are likely to be absent.

(2) Obtain evidence from a medical practitioner as to how long the em-ployee is likely to be absent.

(3) Invite the employee to a meeting to consider options and allow the employee to be accompanied.

(4) Explain possible options to the employee and ask for his views.

(5) Decide on appropriate action, if any, and inform the employee.

(6) Allow the employee to appeal if he is not satisfied with the outcome.

2.12 MisconductMost employers will include their disciplinary procedure either in the contract of employment or in a separate document - it is sometimes included in the company handbook. As long as this procedure contains the basic principles of fairness set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures, an employer can follow his own disciplinary procedures. The ACAS Guide to Discipline and Grievances at Work provides more detailed advice and guidance on disciplinary procedures.

An employer will need to be mindful of the guidelines set out in the ACAS Code because a failure to follow the steps set out in the Code can result in a tribunal

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increasing an award to an employee who has been unfairly dismissed by up to 25%.

There are three basic stages to the disciplinary process:

• the investigation stage; then

• the disciplinary hearing; and finally

• the decision, and, if the allegation is proved, whether to dismiss or if some alternative sanction is appropriate.

2.13 What constitutes misconduct?Misconduct is divided into two categories. Less serious misconduct will merit a warning whilst gross misconduct can merit immediate (or “summary”) dismissal.

For less serious misconduct there will normally be three stages of warning:

• a verbal warning;

• a written warning; and

• a final written warning.

The disciplinary procedure will normally set out a list of matters that will consti-tute gross misconduct. These usually include theft or other dishonesty, fighting, bullying, harassment or discrimination, refusing to obey a lawful order, deliberate and serious damage to property, bringing the company into serious disrepute and incapability at work due to alcohol or illegal drugs.

Some disciplinary procedures set out what constitutes ordinary misconduct. This often includes such things as poor attendance or bad time keeping, minor damage to property, failing to observe company procedures and abusive behaviour.

2.14 WarningThe contract of employment will usually provide a period for which the warning (whether it is a verbal, written or final warning) remains on the employee’s record - this will normally be six or twelve months and the warning is said to be “live” for this period. If a further instance of misconduct is committed within this period the employer can take the earlier warning into account, but if the further instance of misconduct is committed after this period the earlier warning should not normally be taken into account. Where the employee is already on a final written warning it will only take a fairly minor act of misconduct to justify his dismissal.

The disciplinary procedure will normally set out the various stages that are involved when an employee is accused of misconduct and will set out various examples of acts that would be considered to amount to misconduct or gross misconduct. The significance of gross misconduct is that an employee found guilty of gross misconduct can be dismissed without notice and without any further warning.

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2.15 Informal procedureIf you are an employer you should, where possible, try to deal with a disciplinary matter informally. Sometimes a quiet word with the employee concerned will be sufficient to make him aware that the conduct has been noticed and that a change is expected. It will almost always be preferable that this is done in private as if it is done in front of work colleagues it can cause embarrassment and the employee might not feel that he is in a position to put forward an explanation for his conduct.

As an employer you should try to be flexible in dealing with problems that an employee may have. For example if an employee has been getting into work late because of difficulties with public transport it might be possible to change the times when he starts and finishes work to try to accommodate this. If such a change is not possible the employee should be told why this is the case and the need to be on time should be emphasised.

In such circumstances it would be appropriate to warn the employee that if there is no improvement in their conduct this could result in formal disciplinary pro-ceedings. Even though this is not a formal meeting a note should be kept of what has been said.

2.16 SuspensionIn some cases of serious misconduct it may be necessary to suspend the employee concerned while the misconduct is being investigated. Such a suspension should be on full pay and should be for as short a period as is necessary.

There are no set circumstances where the suspension of an employee will be ap-propriate. The ACAS Guide gives some examples: where relationships within the workplace have broken down; in gross misconduct cases; or where there are risks to property. It may also be appropriate to suspend the employee in circumstances where there is a risk of interference with witnesses or with evidence.

If you are an employee who has been informed that you are being suspended but have not been given any reason for this, you should write to your employer asking why you have been suspended. Although the employer does not need to give a reason for the suspension I would suggest that the employer should explain why it considers a suspension to be appropriate in the circumstances. If the employer has no good explanation for the suspension such an action can look unreasonable.

2.17 Formal procedureIf the misconduct continues or is too serious just for an informal chat then formal disciplinary proceedings will need to be undertaken.

It is important that disciplinary matters are dealt with promptly and fairly. This means that the employee must be informed of the allegations against him and must be given an opportunity to answer these allegations before any disciplinary action is taken.

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The procedure is referred to as “formal” because if the misconduct is proved and the employer considers a warning is the appropriate penalty, this warning will be recorded on the employee’s disciplinary record and remains “live” for the stated period. This will apply whatever type of warning is given.

This formal procedure will apply to all allegations of misconduct even when the al-legation is one of gross misconduct. Where an act of gross misconduct is alleged it will be particularly important for the employer to ensure that the correct procedure is followed because such an allegation can lead to the dismissal of the employee.

InvestigationThe matter will start with an allegation of misconduct. This will normally be something that has come to the attention of a manager or supervisor either be-cause he has seen something himself or information has been brought to him. He will have to decide whether it merits an investigation. If he decides that there needs to be an investigation this should be carried out by himself, but not if he is a witness to the misconduct, in which case he should appoint someone else to carry out the investigation.

It is important that a full investigation into the misconduct is carried out - failure to carry out a proper investigation and to give the employee an opportunity to know the allegations against him and to put his side of the case will render the dismissal unfair even where the evidence against him is overwhelming.

As an employer your first step will be to investigate the accusation or complaint against the employee concerned to establish the facts of the case. As a general rule the person carrying out this investigation should not be the person who car-ries out any subsequent disciplinary hearing, although this is not always possible in very small organisations.

Written statements should be taken because these will need to be shown to the employee accused. Normally the name of the witness should be included on the statement - it will only be in unusual circumstances that an anonymous witness statement would be relied on.

Investigation meetingOnce the evidence has been obtained it should be reviewed to see if there is suf-ficient evidence of misconduct to provide a case that the employee should answer. If there is not sufficient evidence that will be an end of the matter. If there is sufficient evidence the investigating officer should consider whether to conduct a formal interview with the employee. Such an interview is not a requirement under the ACAS Code of Practice but it is an advisable step in most cases as it will be an opportunity to clear up any mistakes or misunderstandings without the need for a formal disciplinary hearing. The employee should be given sufficient information about the allegation to know what he is being accused of - ideally he should be given the witness statements at this stage.

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If, during the course of this interview, the employee raises matters that require further investigation, the interview should be adjourned whilst these matters are investigated. The interview should then be resumed with the employee being given the opportunity to comment on any new matters that have been discovered. Once the investigating officer has considered all the evidence and satisfied himself that there is a case to answer he will need to write to the employee informing him that this is the case and invite him to a disciplinary hearing.

What if there are ongoing criminal proceedings?If the employee has been charged with a criminal offence by the police, for ex-ample theft from the employer, the employer will have to decide whether it is appropriate to pursue disciplinary proceedings before the criminal proceedings have concluded. One factor will be whether there is likely to be a long delay before the criminal proceedings are concluded. If there is, it might well be considered reasonable for the employer to proceed with a disciplinary hearing.

If the employee is content for the disciplinary hearing to take place it will probably be reasonable for the employer to continue but if the employee says he has been advised by his lawyer not to say anything in the disciplinary proceedings, as this might prejudice the criminal proceedings, then the employer might have to wait until the criminal proceedings have been finalised before conducting a disciplin-ary hearing.

2.18 The disciplinary hearingThe employee should then be invited in writing to attend a hearing. Whether or not there has been an interview with the employee, this letter should contain sufficient information for the employee to know the allegation against him with sufficient detail to prepare to answer the case against him. If he has not been provided with the written statements or other evidence beforehand he should be supplied with this information at this point.

The employee will have the right to be accompanied by a colleague or union rep-resentative. The place and date of the meeting should be at time and place that is convenient to the employee.

Recording the hearingIt is not unusual at employment tribunal hearings for there to be a dispute as to what has actually been said at the disciplinary hearing. The best way of avoiding such a dispute is to have the hearing recorded, then to have the recording written up (or “transcribed”) and both the employer and the employee to sign the tran-script confirming that they agree it is an accurate record of the hearing.

If notes of the hearing are taken by a secretary or someone else for the employer, it is important for the employee to obtain a copy of these notes as soon as pos-sible after the meeting and make any corrections or additions. Unless he does this at the time it becomes very difficult many months after the meeting to remember

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exactly what was said and the tribunal will usually accept what is written as the correct version.

There have been instances recently of employees secretly recording disciplinary hearings or meetings. This is often referred to as a “covert recording”. Such re-cordings have been admitted by the employment tribunals as evidence. This is not a course of action I would recommend unless you have a good reason to believe that the person conducting the hearing might not record truthfully or accurately what has been said. If you do make such a recording and the matter goes to a tribunal hearing you would expect to be questioned as to why you did not ask for permission to record the hearing but felt it necessary to make a secret recording. There is a short ACAS article on covert recordings dated April 2013 which can be found on the ACAS website.

Who should conduct the hearing?It is always preferable to have the hearing conducted by a person who has not conducted the investigation and is not a witness, although this will not always be possible with very small businesses. There is a danger that, where the person who carries out the investigation and then conducts the hearing, they may be accused of being biased, having prejudged the issue before the hearing, and the tribunal may conclude that the hearing has been procedurally flawed.

At the hearing the employer should explain the complaint or the allegation against the employee. He should go through the evidence that has been obtained. The employee should be given the opportunity to set out their case, to ask questions, put forward evidence and call witnesses. If either the employer or the employee intends to call witnesses they should give the other side advance notice that they intend to do this.

Matters to be taken into considerationIf you are the employer you need to realise that a disciplinary hearing can be both a stressful and an emotional experience for the employee. If the employee considers that he has been wrongly accused of something that he has not done he might well be upset, angry and uncooperative. It is for the employer to ensure as best he can that the disciplinary hearing is conducted fairly, that the employee is encouraged to put his side of the story, that the hearing does not get heated and that matters are dealt with calmly.

If you are the employee it is important to realise that this is your opportunity to put your side of the case. Even if you do not consider you will get a fair hearing you should still put your side of the story. If you do not consider you were guilty of the misconduct alleged you should explain why. If you accept the allegation but consider that there were mitigating circumstances you should put these forward. “Mitigating circumstances” means that you accept the allegation that has been made against you but you consider that there are circumstances or reasons which would lessen the degree of blame. For example, if you have been accused of fight-

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ing it would be a mitigating circumstance to show that you had been provoked.

If you are the employee it will not benefit you to refuse to co-operate with the hearing or to be hostile or aggressive in the hearing because, if the matter does end in your dismissal and you bring a tribunal claim, you will want to persuade the tribunal that it was the employer, and not you, who was acting unreasonably.

When the tribunal comes to consider the merits of the case the test they will apply is whether the employer, on the evidence before him, acted reasonably in dismiss-ing the employee. If you had a good case but failed to put forward this case at the disciplinary hearing the tribunal might conclude that on the evidence before him the employer acted reasonably in dismissing you.

The decisionAfter the meeting the employer will have to decide whether any disciplinary action is justified and if so, what the appropriate action is. If it is a first finding of mis-conduct against the employee then a written warning will normally be sufficient. If it is serious misconduct then a final written warning may be appropriate. If the finding is gross misconduct or the employee already has a final written warning on his record that has not expired, then the employer will be justified in considering dismissal.

Before reaching the decision to dismiss, the employer will need to take into account not just the misconduct itself but other factors including how long the employee has worked and how the employer has treated similar instances of misconduct by other employees. Employers are expected to act consistently; so, if two employees are involved in a fight and it is not possible to decide who was responsible and they both had the same disciplinary record, then the punishment should be consistent.

If a verbal, written or final written warning is given the employee should be in-formed in writing of the nature of the misconduct, how long the warning will remain on his file and the possible impact of a further act of misconduct in this period.

AppealWhatever the sanction, the employee should be given the opportunity to appeal, and he should be notified of this right in writing. The appeal should be heard with-out unreasonable delay. It should, where possible, be heard by a different person than the person who conducted the disciplinary hearing. If the employee raises new matters in his appeal letter these should be investigated before the appeal is heard. Again, employees have the right to be accompanied to the appeal hearing.

As with the disciplinary hearing the appeal hearing should be recorded and the re-cord of the hearing agreed between the employer and the employee. The employee should be informed of the outcome of the appeal hearing in writing without any undue delay.

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Summary of disciplinary procedure for misconduct (1) Resolve the issue of misconduct informally - often a quiet word is

sufficient.

(2) Use the company disciplinary procedure where it has not been possible to resolve the matter informally.

(3) Investigate the allegation, inviting the employee to an investigation meeting if appropriate.

(4) Write to the employee setting out the allegation and evidence of mis-conduct.

(5) Arrange a meeting to discuss the allegation, and allow the employee to be accompanied.

(6) Decide on appropriate action, if any, and inform the employee what penalty, if any, is considered appropriate.

(7) Allow the employee to appeal if he is not satisfied with the outcome.

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Chapter 4

Discrimination

4.1 IntroductionBringing a claim for discrimination in the employment tribunal can appear to be a frightening task. There are various technical words and terms, such as indirect discrimination, comparators, protected characteristics, a proportionate means of achieving a legitimate aim and reasonable adjustments, which may not mean much to a person unfamiliar with employment law.

There will often be the problem of persuading a tribunal that the reason you have been badly treated by your employer, for example you have not been promoted, you have been given the most unpleasant jobs or you have been dismissed, is be-cause of your colour, your sex or because you have a disability.

In this chapter I will try to explain in clear terms who can bring a discrimination claim against their employer, the different types of discrimination and provide some tips about bringing discrimination claims. It will be necessary to refer to the technical words and terms because these are terms that are used in the Equality Act 2010 but I will try to explain what they mean.

Before 2010 there were a number of different Acts dealing with different discrimi-nation. Amongst them there was the Race Relations Act, the Sex Discrimination Act and the Disability Discrimination Act. In 2010 all these individual Acts were abolished and discrimination law was incorporated into the Equality Act 2010. In general the Equality Act did not make any significant changes to discrimination law except for the law relating to disability discrimination, where it clarified what amounts to disability discrimination (I will deal with this later in the chapter). As a result many of the reported cases under the old discrimination acts are still good law under the Equality Act.

4.2 Who can bring a claim?In order to bring a claim you will need to show that you come within one of the categories set out in the Equality Act 2010. These are referred to as “protected characteristics”. Some of these categories apply to all employees - race, sex, sexual orientation and age. For the other categories you will need to show that you come within that category e.g. that you have a disability or that you are married.

It is often thought that you can only bring a claim for race discrimination if you are a member of a racial minority but in fact anyone can bring a claim for race discrimi-nation if they can show that the reason they were treated badly, when compared to other employees, was because of their race or colour. Equally a man can bring a claim for sex discrimination if he can show that the reason he has been treated badly is because he is a man and not a woman. The difficulty lies in proving that

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the motive for the treatment was discrimination and not some other reason. For example, if you are a woman and have been treated badly by your manager who is also a woman, you are likely to find it more difficult to persuade a tribunal that your manager was motivated by sex discrimination than if your manager was a man.

4.3 The layout of the Equality Act 2010If you are bringing a discrimination claim or defending a discrimination claim which has been brought against you, it is helpful to have an idea about the layout of the Equality Act as all discrimination claims brought since 2010 will come under this Act.

Part 2 of the Equality Act sets out the two key concepts. In Chapter 1 these are the nine “protected characteristics” and in Chapter 2 they are the different forms of “prohibited conduct”.

Part 5 of the Act relates to discrimination at work. In this part Chapter 1 deals with employment and who is protected under the provisions of the Act. Chapter 3 deals with Equality of Terms and includes sex equality, pregnancy and maternity equality.

Part 8 extends prohibited conduct to cover employment relationships that have ended and the liability of employers for acts of discrimination by their employees or agents.

Part 9 deals with enforcement. Chapter 2 deals with bringing discrimination claims in the civil courts and Chapter 3 deals with bringing discrimination claims in the employment tribunals. This chapter includes provisions as to time limits for bringing claims and the remedies available. Chapter 4 deals with equal pay claims. Chapter 5 has various miscellaneous provisions but of particular importance are the provisions dealing with burden of proof and obtaining information.

Part 11 of the Act deals with advancement of equality. Chapter 2 deals with posi-tive action in terms of recruitment and promotion.

Part 13 deals with reasonable adjustments in respect of disability discrimination.

There are also 28 Schedules to the Equality Act. The most important are:

• Schedule 1 - this sets out the definition of disability;

• Schedule 8 - this deals with reasonable adjustments;

• Schedule 9 - this sets out various exceptions to the provisions of the Act including occupational exceptions and exceptions relating to age.

4.4 Protected characteristicsSince 2010 all discrimination claims brought in the Employment Tribunal come under the Equality Act 2010. This Act makes it unlawful for an employer to dis-criminate against an employee or a worker on the basis of that person’s:

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• race;

• sex;

• disability;

• age;

• religion or belief;

• gender reassignment;

• marriage or civil partnership;

• pregnancy or maternity;

• sexual orientation.

These are all described as “protected characteristics” (see sections 4 to 12 of the Equality Act 2010).

What this means is if you have one of these characteristics and are treated unfairly or discriminated against by your employer because of this characteristic, you can bring a claim in the Employment Tribunal.

4.5 Prohibited conductThere are various types of conduct that constitute discrimination and these types of conduct are described as “prohibited conduct” in the Equality Act. They in-clude:

• direct discrimination (section 13);

• indirect discrimination (section 19);

• harassment (section 26);

• victimisation (section 27);

• the duty to make adjustments for disabled persons (section 20).

4.6 Direct discriminationA person discriminates against an employee if he treats that employee less fa-vourably than he treats other employees because that employee has one of the protected characteristics (see section 13 Equality Act 2010).

This will include the situation where an employee is discriminated against not because they have one of the protected characteristics but because they have an association with a person who does have that characteristic (for example an em-ployee who is subjected to unfair treatment because they have a disabled child who requires extra care).

Less favourable treatment means that you must be able to point to another em-

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ployee, called a “comparator”, who has not received such treatment (except if the allegation is one of pregnancy-related or maternity discrimination where no comparator is needed).

Where the allegation is one of direct discrimination it does not matter what the motive of the employer is. The question is:

“What was it that the employer did?”

not:

“Why did he do it?”

The treatment must be less favourable treatment. The fact that an employer might treat his female employees differently from his male employers does not in itself mean that he is acting in a discriminatory way. For example, a rule that male em-ployees should not grow their hair below collar length has been held not to be discriminatory.

The fact that an employer treats an employee unreasonably does not in itself con-stitute discrimination unless it can be shown that the reason for this treatment is based on a protected characteristic.

4.7 Indirect discriminationA person indirectly discriminates against another if he applies a provision, criterion or practice (often abbreviated to “PCP”) which is discriminatory and which has the effect of putting an employee, or a person applying for employment, who has a protected characteristic at a particular disadvantage when compared to a person who has not got that protected characteristic (section 19 Equality Act 2010).

In simple terms indirect discrimination is when an employer has some rule or policy which applies to everyone, but it has a worse effect on some people than others and has the effect of putting those people at a particular disadvantage. One example of this is an employer who refuses to allow any employees to work part time, since this rule puts women, particularly women with young children, at a disadvantage as they are less likely to be able to work full time than men.

DefenceIt is a defence to a claim for indirect discrimination for the employer to show that the policy or rule is a “proportionate means of achieving a legitimate aim” (section 19(2)(d)). This defence does not apply to a claim for direct discrimination except if the protected characteristic is age (section 13(2)).

A “legitimate aim” means a good reason or purpose for the discrimination. A “proportionate means” makes it clear that there must be a fair balance between the discrimination and the reason or purpose for it. For example, a factory making food products might have a rule that prohibits employees having beards for health

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and hygiene reasons. This would discriminate against a Sikh who did not shave for religious reasons. In these circumstances a tribunal might well consider that the provision or rule was a proportionate means of achieving a legitimate aim. But if the employee was able to show that there was another cheap and easy way to prevent facial hair being a hygiene risk then the tribunal might consider that the rule was not proportionate.

To take another example, it would be a defence for an employer, who insisted that a particular job be done full time rather than part-time, to show that because of the nature of the particular work required it would not be possible to do the job on a part-time basis or for two people to do it on a job share basis. To succeed in this defence the employer must show that there is a real need for the rule or policy and it must be appropriate and reasonably necessary.

This defence is one of the main differences between direct and indirect discrimina-tion - an act of direct discrimination, unless it is age discrimination, can never be justified but if an employer can show that his policy or rule is justified this will be a defence to a claim of indirect discrimination.

4.8 ComparatorsIf you want to show that you have been subjected to discrimination you will first need to compare your treatment with the treatment of another employee who does not have your protected characteristic (called a “comparator”). You will need to satisfy the tribunal that you were treated less favourably than that employee and that the reason for the less favourable treatment was because of the protected characteristic. You need to remember that the comparator must be someone who is in a similar situation to you but does not have your protected characteristic. What the Equality Act 2010 says, in section 23, is that there must be no material differences between the circumstances of the victim and their comparator, apart from the protected characteristic.

For example if you are a woman and have been made redundant, whereas various male employees doing a similar job were not made redundant, you would want to choose as your comparator a male employee who has been employed for a similar or shorter length of time than you have. You would not want to choose an employee who has been employed for much longer, as the employer is likely to say that it was your shorter length of service that was the reason for you being made redundant.

Hypothetical comparatorWhilst it is preferable for the comparator to be a real person, you can use a hypo-thetical comparator if you are unable to find another employee who is in the same or a similar position. For example a female employee who has been dismissed for lying might not be able to point to a male employee who had not been dismissed for lying but might be able to point to a male employee who had committed an act of dishonesty but had not been dismissed. This male employee was in a different

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situation but the circumstances might be sufficient to allow a tribunal to construct a hypothetical comparator.

4.9 HarassmentHarassment is prohibited conduct under section 26 of the Equality Act. Harass-ment is described as unwanted conduct, related to a protected characteristic, which is designed to or has the effect of violating that person’s dignity, creating an intimi-dating, hostile, degrading, humiliating or offensive environment. It also includes unwanted conduct of a sexual nature and less favourable treatment of a person because they have refused to submit to conduct of a sexual nature.

In everyday language harassment means much the same as bullying. When the bul-lying behaviour is linked to the employee’s protected characteristic the employee can bring a claim for harassment under the Equality Act.

The examples given by ACAS in their Guide to Bullying and Harassment at Work include:

• spreading malicious rumours;

• copying memos that are critical about someone to others who do not need to know;

• ridiculing or demeaning someone;

• overbearing supervision;

• unwelcome sexual advances, which can include touching or displaying of-fensive materials;

• making threats or comments about job security without foundation;

• undermining an employee by constant unfair criticism.

It is not unusual to include a claim for harassment in addition to a claim for race or sex discrimination and less frequently in claims of disability discrimination. In some cases it will be clear that behaviour amounts to harassment - in other cases it will not be so obvious. What an employer might regard as justified encouragement might be seen by the employee as unwarranted coercion or criticism.

Where your employer is able to show that the same standards are applied to all the staff and you are claiming that you were being singled out it will be more dif-ficult for you to succeed than if you can show that the treatment has only been applied to you.

4.10 VictimisationVictimisation is prohibited conduct under section 27 of the Equality Act 2010. Victimisation occurs where an employee is treated less favourably because they have made a complaint, or helped someone else make a complaint, in connection

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with the Equality Act 2010 about the way they have been treated in the workplace.

There are various protected acts including:

• bringing proceedings under the Equality Act;

• giving evidence or information in connection with proceedings under the Act;

• doing anything else in connection with the Act; and

• making an allegation that another person has contravened the Act.

The Claimant needs to prove that the person who has been responsible for the victimisation did so because the Claimant had done one of the protected acts. This protection does not apply if the allegation is made in bad faith (see section 27(3)).

A person may be victimised even though the employment relationship has ended. For example it will apply if you have left your job but your former employer gives you a bad reference because you had done one of the protected acts. This also applies to discrimination generally and harassment (section 108 Equality Act 2010).

Discrimination and victimisation applies not just to existing employees but also to persons applying for employment and applies in relation to the terms on which the employment is offered or by not offering employment (section 39 Equality Act 2010). Discrimination can apply to job advertisements as well as questions asked in job interviews.

4.11 Discrimination in employmentSection 39 of the Equality Act 2010 sets out the different ways in which dis-crimination can occur in employment relationships. The Act specifically prohibits discrimination:

• in the terms of employment;

• in the way the employer gives to or withholds from employees access for promotion, transfer, training or receiving any other benefit, facility or ser-vice;

• by dismissing the employee; or

• by subjecting him to any other detriment.

One of the defences open to employers when applying a requirement that the applicant or employee must have a particular protected characteristic, is that, hav-ing regard to the nature or context of the work, that protected characteristic is an occupational requirement. An example of this could be a job which involves searching female prisoners and is only open to female applicants. The application of the requirement must be a proportionate means of achieving a legitimate aim.

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4.12 Contract of serviceThe Equality Act applies to people who are employed under a contract of service, an apprenticeship or a contract to do work personally. This does not normally include people working as volunteers - nor does it apply to self-employed people.

4.13 Vicarious liabilityWhere an employee, in the course of his employment, discriminates against an-other employee or against a job applicant this will be treated as an act of discrimi-nation by the employer, even if the act is done without the employer’s knowledge or approval (section 109). The legal term for this is “vicarious liability”, where the employer is vicariously liable for the discrimination carried out by one of his employees in the course of his employment.

The employer will have a defence if he can show that he took all reasonable steps to prevent the person from carrying out the act complained of. The sort of thing that a tribunal would want to see is that the employer had provided equality training and that it had a proper system for acknowledging and dealing with complaints of discrimination. If the tribunal considers that the employer could and should have done more to prevent the discrimination it will probably find that the employer has not made out its defence.

4.14 Joint liabilityAn employee can bring a claim against both the individual who has been respon-sible for the discrimination and against their employer. If both are found guilty of discrimination then the tribunal can order that they are both “jointly or severally liable” to pay the compensation. What this means is that the Claimant can recover all his damages awarded to him from either one of two Respondents, so that even if the individual Respondent has no money to pay an award of damages the Claim-ant can recover the whole amount of the award from the Respondent employer.

4.15 Burden of proofOne of the difficulties that can be faced by a Claimant alleging discrimination is proving that the motivation for the treatment he was subjected to was because of his protected characteristic. This is dealt with in section 136 of the Equality Act which has the effect of reversing the burden of proof in circumstances where the Claimant is able to put forward facts from which discrimination can be inferred un-less the employer is able to put forward some explanation showing that the reason for the conduct was not because of the Claimant’s protected characteristic. For example, where a male employee has been promoted rather than a more qualified female employee a tribunal can infer that she has been discriminated against unless the employer can show a good reason for promoting the male employee which did not relate to his sex. In this example the burden of proof would initially be on the female employee to prove that she been discriminated against. Once the female employee provides evidence from which a tribunal can infer discrimination

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(in this case it would be that she, as the more qualified employee, should have been promoted) the burden of proof shifts to the employer to prove that there was some reason, other than her sex, that she was not promoted.

4.16 Age discriminationAge is a protected characteristic under section 5 of the Equality Act 2010. A per-son discriminates against another if, because of a person’s age, he treats that other person less favourably than he treats others.

It is a defence to show that the treatment was a proportionate means of achieving a legitimate aim. For example it has been held that the requirement for a person applying to work as a fire-fighter to be under the age of 30 was justifiable because of the physically demanding nature of the job. But it was discrimination to dismiss an employee for redundancy in order to avoid him becoming entitled to an early retirement pension.

It is likely to be indirect discrimination when a disguised age barrier is imposed as a requirement for a job. For example, if only people with ‘O’ levels can apply this would prevent anyone younger than 47 applying, as GCSE’s were introduced in 1984 in place of ‘O’ levels.

Where an employer imposes a retirement age he will have to justify it by showing that it was a proportionate means of achieving a legitimate aim, in effect that it was a justified business need.

4.17 Disability discriminationDisability is a protected characteristic under section 4 of the Equality Act 2010. If a person treats another person less favourably because they are disabled, this is prohibited conduct under section 13 and would constitute direct discrimination.

Under section 15 of the Equality Act 2010 a person discriminates if he treats a disabled person unfavourably because of something arising in consequence of that person’s disability and he cannot show that the treatment was a proportionate means of achieving a legitimate aim. There is a defence available if the person can show that he did not know and could not reasonably have been expected to know that the person discriminated against had the disability.

A person has a disability if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities (section 6 Equality Act 2010).

The Office for Disability Issues has provided a Guidance Document on matters to be taken into account when determining questions relating to the definition of disability. If you are bringing a claim for disability discrimination this is an impor-tant document that you should read because it sets out clear and helpful guidance and explanations of all the main aspects of disability discrimination. This includes the definition of disability, the meaning of the phrase “substantial adverse effect”

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including the cumulative effects of an impairment and progressive conditions. It also provides guidance on the meaning of “long-term effects” and “normal day-to-day activities” with reference to specialised activities and the effect of treatment or correction measures.

ImpairmentSchedule 1 of the Equality Act 2010 provides further details as to what constitutes a disability. An impairment means a condition or illness which can be a physical illness or a mental illness. In order for the condition to have a long term effect it must have lasted at least 12 months or be likely to last 12 months. Some conditions which become progressively worse are treated as being a disability including can-cer, HIV and MS. Some conditions are excluded from being a disability including addictions to drink or drugs.

In order to assess whether an impairment has a substantial adverse effect the tri-bunal should concentrate on what the Claimant cannot do or what he can only do with difficulty. This does not mean whether or not that person is able to carry out his job, nor does it mean whether the person can do a particular sport or not, but whether he is able or not to carry out the sort of daily tasks that everyone will do.

In the Appendix to the Guidance document there is a list of examples of impair-ments which would be reasonable to regard as having a substantial adverse effect on normal day-today activities, for example a total inability to walk, or an ability to walk only a short distance without difficulty. There is also a list of examples which it would not be reasonable to regard as having a substantial adverse effect on normal day-to-day activities, for example experiencing some tiredness or minor discomfort as a result of walking unaided for a distance of about one mile.

ComparatorIf you can show that you have been treated unfavourably because of your disability you do not need a comparator because the Equality Act does not say that you have to have been treated less favourably than a person without the disability. However, in practice you will often be able to point to other non-disabled employees who have not been treated in the same way that you have, to show that you have been discriminated against.

For example, if everyone in the business has had their hours reduced, you can argue that you have been treated unfavourably but you will be unlikely to persuade a tribunal that it was because of your disability, whereas if you are disabled and you are the only employee to have had your hours reduced you are more likely to persuade a tribunal that this treatment was on account of your disability.

The employer will have a defence if he can show that the treatment was for a justi-fied business need. For example, if you suffer from blackouts an employer might be justified in not appointing you for a job working at height where this condition would put you at risk of serious injury.

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Job applicantsThere is specific provision in section 60 which says that an employer must not ask about the health of a job applicant before offering him a job. The Equality Act makes it clear that it is not asking the question that is wrong - it is the conduct based on the information. Thus if the applicant is suffering from a particular condition and is asked in the job interview about his health, he refers to this condition and then is not offered a job, it will be for the employer to show that the applicant’s health was not the reason he was turned down. This provision does not prevent the employer asking whether the job applicant can comply with a requirement to undergo an assessment, or whether he will be able to carry out a function that is intrinsic to the job.

Duty to make adjustmentsUnder the Equality Act (section 20) an employer has a duty to make adjustments in relation to disabled employees. The duty consists of three requirements:

• Where a provision, criterion or practice (often referred to as a “PCP”) puts a disabled person at a substantial disadvantage in comparison to a person who is not disabled the employer must take such steps as are reasonable to have to take to avoid the disadvantage.

What is a “PCP”? It is anything in the way that an employer organises or arranges how work is carried out. For example, a requirement that employ-ees turn up for work at 9.00am is a provision or practice that might put a disabled person at a disadvantage if they need to attend regular hospital appointments at that time. A reasonable adjustment might be to allow the employee to work flexible times so that they do not have to be at work at 9.00am. Similarly a requirement that employees have to be able to lift heavy items might be a provision or criterion that puts a disabled person with a se-rious back condition at a disadvantage. Here, a reasonable adjustment might be to change the employee’s duties so they do not have to lift heavy items.

• The second requirement is where a physical feature of the workplace puts a disabled person at a substantial disadvantage in comparison to a person who is not disabled. The employer must take such steps as are reasonable to have to take to avoid the disadvantage. This refers to some physical feature in the design or construction, either inside or outside a building, such as steps leading up to an office, and the adjustment might be the provision of a ramp to allow access for wheelchair users.

• The third requirement is to take reasonable steps to provide an auxiliary aid or service without which the disabled person would be put at a substantial disadvantage, including making sure that information is provided in an accessible format.

If the employer fails to comply with a duty to make reasonable adjustments this will constitute discrimination.

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4.18 Gender reassignmentIf a person is proposing to undergo, is undergoing or had undergone a process for the purpose of changing their sex then that person will have a protected charac-teristic. If that person is absent from work because they are undergoing treatment for gender reassignment they will be discriminated against if they are treated less favourably than a person who is absent because of sickness or illness (section 16 Equality Act 2010).

4.19 Marriage or civil partnershipsBeing married or in a civil partnership is a protected characteristic. A person discriminates against another person if he treats that other person less favourably because he is married or in a civil partnership (section 13 Equality Act 2010).

4.20 Pregnancy and maternityPregnancy and maternity are protected characteristics. A person discriminates against a woman if, because of pregnancy or maternity, he treats her less well than he would treat others. A person discriminates against a woman if he treats her unfavourably because of her pregnancy or because of an illness suffered by her because of her pregnancy (section 18 Equality Act 2010).

The period of the pregnancy is referred to as the “protected period”. It begins when she becomes pregnant and ends at the end of her maternity leave period if she has the right to maternity leave or if not, two weeks after the end of the pregnancy. The discrimination against pregnancy does not require a comparator. For example, if a woman is dismissed because of pregnancy-related sickness this would be discriminatory even if a man would be dismissed for the same period of sickness absence.

A refusal to employ a pregnant woman would constitute discrimination.

4.21 Race discriminationThe protected characteristic of race includes colour, nationality, ethnic or national origins. A person discriminates against another if he treats that person less favour-ably than he treats others. Section 13 of the Equality Act 2010 prohibits direct discrimination. The motive for the discrimination is not relevant.

It constitutes indirect discrimination if a person applies a provision, criterion or practice (“PCP”) which puts that person at a disadvantage because of his race and he cannot show that it is a proportionate means of achieving a legitimate aim (sec-tion 19 of the Equality Act 2010 prohibits indirect discrimination). Thus a rule that an employee cannot have long hair might be indirect discrimination against a Sikh but if the rule can be justified on health and safety grounds it might be permitted.

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4.22 Religion or beliefAny religion is a protected characteristic, and some philosophical belief can be a protected characteristic but it must be a belief rather than just an opinion. The discrimination must be on the grounds of holding the belief. A registrar who refused to marry same sex couples because it was contrary to her belief and was dismissed was not discriminated against because the dismissal was not on the grounds of her belief but because she refused to comply with her contractual obligations to conduct marriages (section 13 of the Equality Act 2010 prohibits direct discrimination and section 19 of the Act prohibits indirect discrimination).

4.23 Sex discriminationA person discriminates against another if he treats that person less favourably than he would treat others because of their sex (section 13 of the Equality Act 2010 prohibits direct discrimination). The motive for the discrimination is irrelevant.

An employer discriminates against a person if, because of that person’s sex, he applies a provision, criterion or practice which is discriminatory or puts him at a disadvantage and cannot show that it is a proportionate means of achieving a legitimate aim (section 19 of the Act prohibits indirect discrimination).

Justification can be a defence to indirect discrimination while it is not a defence to direct discrimination. It can be indirect discrimination for an employer to re-fuse to allow a woman to work on a part time basis because more woman look after children than men and this can indirectly discriminate against women. The employer will have a defence if he can show that the requirement for full time work is justified.

The employer will also have a defence if it can be shown that it is an occupational requirement that it is crucial to the job that it is done by a person of a specific sex.

4.24 Sexual orientationA person discriminates against another if he treats that person less favourably than he would treat others because of their sexual orientation (section 13 of the Equality Act 2010 prohibits direct discrimination). An employer discriminates against a person if, because of that person’s sexual orientation, he applies a provi-sion, criterion or practice which is discriminatory or puts him at a disadvantage and cannot show that it is a proportionate means of achieving a legitimate aim (section 19 of the Act prohibits indirect discrimination). Sexual orientation means whether a person is attracted to persons of the same sex, persons of the opposite sex or persons of either sex.

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Outcome of grievance meeting 1Mr Ford

Bigtown Manufacturing Limited

100 High RoadBigtown

Mr A N Smith123 Hillside RoadBigtown

26th October 2014Dear Mr Smith,

On 12th October 2015 you wrote to me with a number of complaints. These were that:

• Mr Brown was trying to get you to change your shift pattern;

• when you refused he stopped your overtime; and

• he criticised you in front of your work colleagues.

Before the grievance meeting on 25th October 2014 I spoke to Mr Brown about your complaints. He said that he had asked you to change your shift patterns because the company was trying to introduce a more flexible shift system. He said that you had refused but had not given any reason.

Mr Brown said that overtime generally had been reduced because of a downturn in production and this applied to all the members of the production line team not just to you.

Mr Brown said that there had been several occasions when he had to point out to you that your work was below standard.

At the grievance meeting on 25th October 2014 you explained that because you had to take your children to school in the morning you would have difficulty doing a morning shift. I explained that we were trying to introduce a more flexible working pattern and if you were able to make other arrangements for your children getting to school it would be helpful if you could change your shift but that this was not something we were going to insist on.

You accepted that there had been a downturn in production but still insisted that other members of your team were getting overtime. I looked at the time sheets for all the members of your team and was able to satisfy myself that in fact there had been no overtime for any members of your team for several months. Your grievance regarding overtime was therefore not upheld.

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You have accepted that Mr Brown was justified in speaking to you about your performance but you found it humiliating to be told this in front of your work colleagues. I have spoken to Mr Brown about this and if he has occasion to speak to you in future about your performance he will do so in private. To this extent I uphold your grievance on this point.

I hope you are satisfied with the outcome of this grievance procedure but if you are not satisfied you can appeal by writing to Mr Black, the H.R Manager within 7 days.

Yours sincerely

Mr Ford

Head of Production

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Outcome of grievance meeting 2Mr Jones

Bigtown Manufacturing Limited100 High Road

BigtownMs C Ferguson125 Fellside RoadBigtown

26th October 2014Dear Ms Ferguson

On 12th October 2014 you wrote to me complaining that you considered you have been discriminated against and that you have been refused a promotion on two occasions because you are black and female.

At the grievance meeting on 25th October 2015 I heard from both you and Mr Smith, who had conducted the interviews and made the two appointments that you have complained about.

Mr Smith explained that both positions were advertised internally and externally. On each occasion there were between 20 and 30 applicants, of these five were invited to come for an interview. You were one of the five who were short-listed for interview but unfortunately you were unsuccessful on each occasion.

Mr Smith said that he selected the person that he considered was best suited for the position irrespective of race, colour or sex. He explained why the persons he selected were better qualified or suited for the position than you were. Having heard both from your self and from Mr Smith I am satisfied that this was the case and that you were not discriminated against. I therefore do not uphold your grievance.

I hope you are satisfied with the outcome of this grievance procedure and that you will not be deterred from applying for other positions in the future. If you are not satisfied you can appeal by writing to Mr Ford, the Head of Production within 7 days.

Yours sincerely

Mr Jones, Head of Distribution

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Invitation to disciplinary investigation meetingMr Jones

Bigtown Manufacturing Limited100 High Road

BigtownMr A N Smith123 Hillside RoadBigtown

23rd October 2014Dear Mr Smith,

You have been signed off sick from work for the last week with back ache yet we have been informed that you were seen in town on several occasions last week. One of these occasions was at a football match, and you did not appear to be injured. We have tried contacting you at your home on several occasions and there has been no answer.

Your current sick certificate ends on 25th October 2014 and when you return to work on 26th October you will required to attend a disciplinary investigation meeting at 10.30 a.m.in order for you to explain your actions and why you have not been at home when certified off sick.

I should remind you that, under the disciplinary procedure in the Terms and Conditions of your Contract of Employment, dishonesty can constitute an act of gross misconduct meriting summary dismissal.

You have the right to be accompanied by a trade union official or a work colleague.

If you are unable to attend that meeting please contact me as soon as possible so alternative arrangements can be made

Yours sincerely

A Jones

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Invitation to disciplinary hearingMr Jones

Bigtown Manufacturing Limited100 High Road

BigtownMr A N Smith123 Hillside RoadBigtown

28th October 2014Dear Mr Smith,

I am writing to you about an incident that apparently occurred yesterday at work. The Production Line Manager, Mr Brown, says that he saw you fighting with another team member, John White. You were both sent home.

Please find attached to this letter a statement made by Mr Brown setting out details of the incident.

You will required to attend a disciplinary investigation meeting on 30th October 2014 at 10.30am. in order for you to explain your actions. You are entitled to bring any witnesses you would like to give evidence on your behalf.

I should remind you that, under the disciplinary procedure in the Terms and Conditions of your Contract of Employment, fighting can constitute an act of gross misconduct meriting summary dismissal.

You have the right to be accompanied by a trade union official or a work colleague.

If you are unable to attend that meeting please contact me as soon as possible so alternative arrangements can be made

Yours sincerely

A Jones

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Dismissal letterMr Jones

Bigtown Manufacturing Limited100 High Road

Bigtown

Mr A N Smith123 Hillside RoadBigtown

31st October 2014Dear Mr Smith,

At the disciplinary hearing yesterday you admitted that you had been fighting with another member of the production team, John White. You said that he had provoked you and had been constantly making abusive and derogatory comments towards you.

You accepted that you were aware that fighting at work was a serious disciplinary matter. You said that this had never happened before and that in the three years you had worked for the company you had a good disciplinary record.

I do not accept that the provocation from Mr White was an excuse for you to at-tack him and your behaviour was not acceptable. In spite of the fact that you have a good disciplinary record we regard fighting on the shop floor as a very serious matter. It constitutes gross misconduct and in the circumstances we have no option but to dismiss you with immediate effect.

You have the right to appeal against this decision. Your appeal must be submitted in writing within seven days of today.

Yours sincerely

A Jones

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Appeal against dismissalA.N. Smith

123 Hillside RoadBigtown

Mr JonesBigtown Manufacturing Limited100 High RoadBigtow

1st November 2014Dear Mr Jones,

I wish to appeal against the decision to dismiss me. I admitted that I had been fighting with John White but I explained that I had put up with weeks of provoca-tion from him by way of abusive and derogatory remarks. I had complained about this to the Production Line Manager on a number of occasions but nothing had been done and the provocation had continued.

I explained that on the day of the fight I was upset because of problems at home and this caused me to react to Mr White’s comments.

I have worked for the company for three years without any previous disciplinary problems. I do not consider that I should be dismissed for this first offence par-ticularly as Mr White was not dismissed but only given a final warning.

Yours sincerely

A Smith

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Resignation letter 1A.N. Smith

123 Hillside RoadBigtown

Mr JonesBigtown Manufacturing Limited100 High RoadBigtown

30th October 2014Dear Mr Jones,

At the grievance hearing on 25th October 2014 you said that you would speak to Mr Brown and advise him not to criticise me in front of my work colleagues. I had hoped that Mr Brown’s attitude towards me would improve but in fact it has got worse. He has continued to pressurise me into accepting morning shifts and makes sarcastic and derogatory comments when I explain that I can’t.

He has continued to criticise me in front of my work colleagues and has made it clear that he does not want me working as part of his team.

I cannot put up with his bullying behaviour any longer as it is starting to affect my health. I regard this behaviour as a breach of the implied term of trust and confidence. In these circumstances I have no alternative but to resign.

Yours sincerely

A N Smith

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Resignation letter 2C Ferguson

125 Fellside RoadBigtown

Bigtown Manufacturing Limited100 High RoadBigtown

30th October 2014Dear Mr Jones,

On 12th October 2014 I wrote to you complaining about the fact that I considered that I had been discriminated against and had been refused promotion because of my sex and/or colour. There was a grievance hearing on 25th October 2014 and my grievance was rejected.

I do not consider that my grievance was fairly dealt with. You did not take into account the fact that on several occasions I had actually been asked to carry out su-pervisory duties. You did not explain why it was necessary to advertise the position externally when there are people employed by the company who perfectly capable of carrying out the position. You ignored the fact that several people had told me that the company did not want a female supervisor in the Distribution Section.

Since the grievance hearing I have been subjected to harassment and sarcastic comments from Mr Smith and employees in the Distribution section.

I consider that I have been discriminated against because I am black and a female, I do not consider that my complaints have been taken seriously and I have been subjected to harassment and victimisation because I have complained. I regard this behaviour as a breach of the implied term of trust and confidence. In these circumstances I have no alternative but to resign.

Yours sincerely

Ms C Ferguson

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ET1 Section 8.2: Details of claim - unfair dismissal (1)1. I have been employed by the Respondent since 1st October 2011 as a Production Line Worker at the Respondent’s factory in High Road, Bigtown.

2. I work as part of a team of four. One of the other team members is John White. Because Mr White has worked at the factory for longer than me he feels that he is entitled to order me around. He will often make abusive and threatening remarks to me.

3. On 5th June 2014 Mr White raised his fist at my face and threatened to ‘smack me one’ when I dropped some trays. Two days later he called me a “clumsy oaf ”. On many occasions he has made offensive remarks to me in front of the other team members.

4. I have complained to the Production Team Manager, Mr Brown, on a number of occasions about things that Mr Smith has said to me but nothing has happened and Mr White has continued his bullying behaviour towards me.

5. On 27th October 2014 there had been difficulties at home - my wife was ill and I had to make arrangements for the children to be looked after. As a result of this I was late in for work and as soon as I arrived John White started criticising me, accusing me of having a lie in. I told him to stop but he still persisted. I accept that I lost my temper and pushed him but he over-reacted and started hitting me.

6. On 30th October 2014 I attended a disciplinary hearing conducted by Mr Jones. I told him about Mr White’s bullying behaviour towards me in the past and that on this occasion he provoked me. I had complained about Mr White’s behaviour towards me in the past but nothing had been done to stop this. On 2nd October I had problems at home, which I was worrying about. Mr Jones said that this was no excuse and that he had no alternative but to dismiss me.

7. I accept that I was wrong to push Mr White and have apologised for doing this but I consider that to dismiss me for this incident was unfair. I have never been in trouble before and have had no warnings about my behaviour. I also consider that my dismissal was unfair when compared to the way Mr White was treated - he was only given a final warning. Mr White provoked the incident and he over-reacted. He has been in trouble in the past for disciplinary matters.

8. I do not consider that when deciding to dismiss me the Respondent took into account all the circumstances, including the fact that I had been provoked. I consider that the decision to dismiss me was unreasonable and unfair.

9. In addition to compensation for unfair dismissal I claim the notice pay to which I am entitled.

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10. The Respondent failed to inform me of my right to appeal the dismissal and it is therefore in breach of the ACAS Code of Practice on Grievance and Disciplinary Procedures and any damages awarded should be increased by up to 25%.